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Imagine that a family member has just passed away and you know they have important information stored on the internet. It could be in the cloud, in their email, or on a social media account. How do you access this information? The Massachusetts Supreme Judicial Court (“SJC”) recently decided the case Ajemian v. Yahoo!, Inc., 478 Mass. 169 (2017), has shed some light on this question.

Ajemian was named the Personal Representative (formerly executor/trix, appointed by the Probate Court to administer the decedent’s estate) of her late brother’s estate and needed access to his Yahoo email account. She offered her Letters of Authority (a document from the Probate Court that shows the Personal Representative has the authority to act on behalf of the estate) to Yahoo who refused to grant her access to the email account. Yahoo claimed that a Personal Representative of an Estate did not have the right to access the information because of federal privacy laws and that the disclosure violated Yahoo’s terms of service. The SJC ultimately determined that disclosing the information in the Yahoo email account to Ajemian did not violate federal privacy laws because Ajemian, as Personal Representative, was the only person with authority to consent to the release of the email account on behalf of the deceased. The SJC did not make a ruling on whether or not the disclosure would violate Yahoos terms of service and remanded that decision back to the Probate Court.

While the SJC did not give the total green light to the release of the Yahoo email account to Ajemian, the SJC did rule that the release did not violate federal privacy laws. This decision can have a ripple effect throughout the internet community possibly allowing Personal Representatives to request and access the electronic information of deceased loved ones. Facebook and Instagram already have policies in place allowing court appointed Personal Representatives to delete or memorialize the account of a deceased loved one. Gmail even allows people to appoint someone on their email service who will automatically be able to access account information after the death of the account holder.

One way to ensure that your loved ones will be able to access your electronic information, or to specifically prohibit access, is to make provisions regarding such access in your Last Will and Testament (“Will”). Your Will tells the court who you want to be in charge of your estate and what you want that person to do with your assets. This can include access, or specific prohibitions, to electronic information.

If access to your electronic information after you pass away is important to you, the Estate Planning attorneys at Baker, Braverman & Barbadoro can help you draft a Will that includes your electronic access goals. – Elizabeth A. Caruso.

Two prominent franchises were recently found in violation of the child labor laws by the Massachusetts Attorney General’s Office. Burger King was found to have more than 800 child labor violations at stores across the state. Among the violations uncovered were minors working shifts that exceeded the total maximum daily hours allowed or shifts that ended later than allowed under state law, in some instances past 3 a.m. Many of the minor employees also did not have the proper work permits. Similarly, Sugar Heaven, a popular candy franchise, violated child labor laws by scheduling and allowing minors to work later or for longer than what is permitted and by failing to obtain work permits for minors. Employees under 18 were also frequently left to close the stores late at night.

The Massachusetts Child Labor Laws apply to all child workers ages 14 to 18; children under the age of 14 are not eligible to work, with few exceptions such as working as a news carrier, on a farm, or in entertainment (with a special permit). The state’s child labor laws, according to the attorney general’s office, were written to “protect young workers who suffer injuries at much higher rates than adults and who need to balance work and education.”

Child labor laws require the following to ensure a safe and positive work experience for minors:

Minimum wage. The minimum wage in Massachusetts is $11 an hour.

Work Permits. Workers under 18 years old need a new work permit for every job. The application for a work permit must be filled out by the parent or guardian, the minor, and employer and submitted to the school district where the child lives or attends school. Minors who are 14 or 15 also need a physician’s signature.

Hazardous Jobs. Teens under 18 years of age are prohibited from doing certain kinds of dangerous work. Such hazards include, but are not limited to operating, cleaning, or repairing power-driven meat slicers, grinders, or choppers; driving a vehicle, forklift, or work assist vehicle; handling, serving or selling alcoholic beverages. Teens under 16 are prohibited from even more tasks that are considered dangerous such as performing any baking activities; operating fryolators, rotisseries, NEICO broilers, or pressure cookers; working in freezers or meat coolers; working on or use ladders, scaffolds, or their substitutes; and working in amusement places (e.g., pool or billiard room, or bowling alley) or barber shops.

Supervision. After 8 p.m., all workers under 18 must have the direct and immediate supervision of an adult supervisor who is located in the workplace and is reasonably accessible to the minor.

Legal Work Hours for Minors. Massachusetts law controls how early and how late minors may work and how many hours they may work, based on their age. For example 14- and 15-year olds can only work between 7 a.m. and 7 p.m. during the school year for a maximum of 18 hours per week during the school year (which is further restricted to only 3 hours on a school day, 8 hours per day on a weekend and no more than 6 days a week). 14- and 15-year olds can only work and between 7 a.m. and 9 p.m. during the summer (July 1 through labor day), for a maximum of 8 hours a day, 40 hours a week but not more than 6 days.

Employers tend to violate the hours requirements, supervision requirements and permitting requirements for young workers most frequently. If you are an employer that hires workers under the age of 18 make sure that you are knowledgeable as to all of the restrictions involving child workers, and the paperwork required for child employees. The employment lawyers at Baker, Braverman & Barbadoro, P.C. are available to meet with you and to review your employment practices. – Susan M. Molinari.

Restrictive covenants are, in a nutshell, private restrictions on the use of land. They are generally disfavored by state law, and developers must adhere to strict guidelines to protect their enforceability beyond a thirty-year period.

Restrictive covenants typically arise during residential or commercial developments. Before selling off property, a developer could create restrictions governing certain aspects of the buildings or landscapes on each lot. The scope could include color and design of a building, use of a property (such as a single-family residence being required where zoning would otherwise allow multi-family residences), and maintenance of trees and bushes.

These restrictions are contracts between the developer and owners of the properties (including subsequent owners, assignees, and mortgagees). In Massachusetts, restrictive covenants “created by deed, other instrument, or a will” expire in 30 years unless properly extended (the 30-year limit generally does not apply to restrictions imposed by a planning board).

A recent case from the Massachusetts Appeals Court instructs that the developer must explicitly provide for potential extensions in the original documents in order for a restrictive covenant to survive beyond 30 years. This rule applies to any restriction created after January 1, 1962. Under the applicable statute, extensions of 20 years each may be approved by a majority of the owners in the development, but only if addressed in the original documents. In the Appeals Court case, the original restrictive covenant documents allowed the owners, by 2/3 vote, to amend the restrictions. However, the amendment provision did not explicitly address extensions. Because the right to extend was not set forth in the original documents, the court held that the owners, even with a 2/3 vote, could not extend the restriction beyond 30 years. Accordingly, the bulk of the owners in a development could not enforce the restrictions against one owner after the 30-year period had expired.

If you own or are purchasing property subject to restrictive covenants, or if you are a developer considering whether to create restrictive covenants, please contact one of the Real Estate attorneys at Baker, Braverman & Barbadoro, P.C. to get the expert legal advice you need. – Kimberly Kroha.

Commercial leases typically divvy up the costs for maintaining a building and property amongst the tenants. These costs are called common area maintenance expenses, CAM for short. Leases can be structured in many different ways, and the devil is in the details. Below are a few provisions to review closely to limit post-occupancy surprises.

1. Real Estate Taxes. Some landlords pay all real estate taxes, some charge all real estate taxes to the tenants, and others charge real estate taxes over a “base year.” For “base year” leases, tenants pay for any increases in real estate taxes that took place after the first year of the lease, which can be caused by changes in tax rate or assessed value. Tenants anticipating a base year structure in new construction or substantially renovated properties should negotiate for the “base year” to start after the property is reassessed to include the value of the construction.

2. Administrative and Management Fees. Landlords can charge administrative fees, which are typically considered the cost of receiving and paying the bills and other typical overhead. A typical administrative fee is 10% of the CAM expenses. The larger cost is management fees, which are generally 3-5% of rent, CAM, and insurance costs. Management of a property takes time and money – someone needs to hire and manage the landscaper, the electrician, the snow plow companies, and so forth, but tenants should understand how the fee is calculated and watch out for a management fee on real estate taxes, which usually do not require much effort.

3. Pro-Rata Share. A tenant’s share of the CAM expenses can be defined as the size of the tenant’s leased premises over the size of the total leasable area OR over the size of the total leased area. Those do not look much different, but they are. A pro-rata share calculated over the leased area allows a landlord to redistribute expenses from a vacant suite to other tenants, whereas a calculation over the leasable area requires the landlord to cover the expenses for vacancies. There are some expenses that may be fair to redistribute – water and trash removal – and others that may not – such as snow plowing that needs to be done regardless of the occupancy.

4. Controllable Costs. Landlords may agree to a cap on “controllable” costs. The word “controllable” is amorphous, and a general list of items included in that term should be stated. Landscaping and regular maintenance are usually considered controllable, snow removal and insurance are not.

Massachusetts General Laws define financial exploitation as the substantial monetary or property loss of an elderly person due to an act or omission of another person. Financial exploitation occurs in the form of internet scams, forging signatures on checks, the illicit use of credit cards and the misuse of a power of attorney. It also includes exerting undue influence over an elderly person to convince them to transfer assets or change his or her Will, Trust, Durable Power of Attorney or other estate planning documents. In Massachusetts, elder abuse, including financial exploitation, is a crime, however it is often unreported and not discovered until the victim has passed away. Elders tend not to report incidents of financial exploitation because they are fearful of retaliation, may have diminished cognitive or physical ability, or simply because they are embarrassed that they were taken advantage of.

The signs of financial elder abuse include, but are not limited to, the elder giving away property; the elder changing their estate plan at the urging of someone else; the elder spending time with a new “friend” and is paying that person in exchange for care; or bank account or credit card statements reflecting transactions that the elder either could not or would not have made. Despite the perception that an elder is likely to be exploited by a stranger, it is more likely that a family member is the perpetrator of financial abuse. Given the rise in opioid addiction, there has been a rise in Massachusetts of complaints of financial exploitation due to adult addicted children moving back in with their elderly parents or other elderly relatives.

It is important to protect yourself and your loved ones from becoming a victim of elder financial abuse. There are a few steps you can take to protect yourself or your loved ones, such as: be aware of your finances or the elder’s finances, even if someone is managing the bills for you or the elder, check the credit card statement and bank statements, question any unusual or suspicious transactions; set up direct deposit for social security or other income; do not give out personal information, such as our social security number or bank account information over the phone; be wary of emails claiming a loved one is traveling and has been robbed or needs your financial assistance; and do not meet with a financial planner who you did not initiate contact with.

If you believe you or a loved one is being financially exploited, this should be referred to Elder Services and the police. However, it is often the case that the financial exploitation is not discovered until after the death of a loved one because elders often to not report exploitation out of embarrassment or fear of retribution. If you believe you or a loved one are or were a victim of fraudulent exploitation, contact Baker, Braverman & Barbadoro, P.C. to assert your rights. – Susan M. Molinari.

You may be surprised to learn that your health insurance provider has the right to assert a lien for the repayment of benefits paid on your behalf with regard to your personal injury case. This is what’s called demand for subrogation. Subrogation is premised upon the concept that a person should not have their medical bills paid twice, once by his/her health insurer, and a second time in the form of a settlement or judgment for damages. Massachusetts General Laws Chapter 111, §§70A-70D set forth the procedure whereby a health care provider may perfect a lien. The statute expressly provides that written notice of a lien must be sent via certified mail return-receipt requested to the injured party, his or her attorney, and the insurer prior to the third-party settlement. If you fail or refuse to pay the insurance lien, you can be sued by your private insurance company for repayment of the lien amount and denied future coverage.

It is crucial to obtain a copy of the contract language from your health insurance plan to determine what rights your health insurance company may have. Most contract language limits recovery to third party liability cases and insurers do not have a right to settlement funds from Uninsured Motorist cases or Underinsured Motorist cases.

Prior to the completion of your personal injury case it is important to ensure that you have exhausted your Personal Injury Protection (PIP) Coverage on your automobile insurance policy including MEDPAY, and that the bills reportedly paid by your private health insurance provider have, in fact, been paid and are related to the injuries you sustained in the accident.

When it comes to the payment of liens, attorneys can often negotiate a reduction of the lien amount held by your private health insurance company, ultimately giving you a greater net recovery.

Negotiating with a Health Maintenance Organization (HMO) is often easier than with a Preferred Provider Organization (PPO) since HMOs operate by paying hospitals, doctors, and other health care providers a specific amount each year for every patient they see, regardless of the amount of treatment any single patient receives. When you negotiate a medical lien reduction with an HMO it is important to understand that they’ve already paid the provider their fee. PPOs differ from HMOs in that a PPO pays providers separately for each of the services they provide but the providers agree to accept lower fees in exchange for being part of the PPO network (with the potential for attracting more patients). Basically, HMOs negotiate with their own money, whereas PPOs negotiate with the medical provider’s money.

The Quincy Law Firm of Baker, Braverman & Barbadoro, P.C., in conjunction with the South Shore Bank, invites parents of students headed off to college — even if it is not their first year – to a free seminar to assist them in preparing for an unexpected adversity. Scheduled for August 23rd, this seminar provides three important tools to protect against some serious legal, medical and financial difficulties that can occur when your over-18 year old child leaves home.

Originally chartered in 1833, South Shore Bank is a full-service community bank with assets of approximately $1 billion and 16 locations. All deposits are insured in full. The FDIC insures all deposits up to $250,000 per depositor and up to $250,000 per depositor for Individual Retirement Accounts (IRAs); all deposits above this amount are insured by the Depositors Insurance Fund (DIF). For more information, visit http://ift.tt/2uEGLUB.

Investment products and services are offered through INFINEX INVESTMENTS, Inc. Member FINRA/SIPC. The Investment Center at South Shore Bank is a trade name of the Bank. Infinex and the Bank are not affiliated. Products and services made available through Infinex are not insured by the FDIC or any other agency of the United States and are not deposits or obligations of nor guaranteed or insured by any Bank or Bank affiliate. These products are subject to investment risk, including the possible loss of value.

When you have decided to purchase a home in Massachusetts, you have undoubtedly made a life-altering expensive decision. Once the offer to purchase has been accepted by the seller, the first question your broker will likely ask you is whether you intend to hire your own attorney to assist and guide you through the next steps or whether you intend on settling with the attorney the bank will select to represent it with the financing.

Of course, this is not an easy decision. Cost is always a consideration. Frankly, if your financing is locked in, your lender will already have selected the bank attorney and he/she will gladly offer you the opportunity to “piggy back” the bank’s representation by using the same lawyer. Often this service is offered at a significantly reduced fee. Makes perfect sense, right? Not always.

While most residential real estate transactions proceed to a closing very smoothly– some do not–and it’s in those rare occasions you will wish you had an attorney representing you. For example, what if the seller had agreed to leave all of the appliances and furniture with the home, and when you did your final walk-through of the property in advance of closing they were not there. This has happened. Will the “bank attorney” help you through this situation and ensure that you receive appropriate credit or other compensation for this? Probably not, as the bank attorney’s alliance is to his or her primary client, the bank. You will be on your own in negotiating a resolution in this scenario.

What if, between the time of your inspection and closing, the roof has developed significant leaks or there has been other damage to the home? The bank’s attorney will not want to get involved with this on your behalf because, again, his or her alliance is to his or her primary client, the bank, and the significantly reduced fee offered to you at the outset, does not cover extended negotiation of disputes with the seller. Lastly, what if midstream, the seller has decided that he no longer wants to sell you the property, despite being under contractual obligation to do so? Will the bank’s lawyer protect you in this situation? It is very unlikely. He or she will probably cancel the closing and move on to the next bank transaction and leave you hanging without effective representation to deal with this.

Of course, having effective, competent, legal representation is more expensive than “piggy backing” on the bank’s lawyer, however, the added cost (on what is arguably the most expensive purchase you will ever make in your lifetime) is well worth it–especially, if something unfortunately goes wrong. And when it does, you can comfortably and confidently say, talk to my lawyer—she’s dealing with it.

At Baker, Braverman & Barbadoro, P.C. we have experienced real estate attorneys that can assist you from offer to closing, and in the event that you used a bank attorney and find yourself with an issue, our litigation attorneys are prepared to step in to protect your interests. –Gary M. Hogan.

A majority of married couples file their tax returns jointly, but what are your options when you are divorced or in the midst of getting divorced? If your divorce is final by the last day of the calendar year you can no longer file jointly. In that case, you must file either “single” or “head of household”. A head of household filing typically allows a party to be taxed at a lower rate, but you must meet the following criteria to claim head of household status: 1. you paid more than ½ of the cost of maintaining your home for the tax year, these expenses include mortgage, taxes, homeowners’ insurance, utilities and food eaten in the home, 2. your spouse did not live with you for the last 6 months of the tax year, 3. your home was the main home of your child, stepchild or eligible foster child for more than ½ of the year and 4. you could claim a dependent exemption for your child. If you file head of household your spouse must file married filing separately. Once you are divorced you can file head of household if you pay more than half of the costs of maintaining your home for the tax year and your children live with you more than half of the tax year.

If you are in the process of getting divorced, you may file jointly. However this should be agreed upon by the parties in advance and include consultation with both your accountant and your attorney. Oftentimes professionals advise clients to continue filing jointly because the tax burden is reduced; however this is dependent upon each party’s income, deductions and credits. The primary disadvantage to filing jointly is that now both parties are jointly and severally liable for any tax deficiencies, interest and penalties. Your Separation Agreement (or Judgment if your case is litigated and decided by a judge) should address how the parties deal with any tax refunds and/or liabilities. In the interim, the parties should enter into a stipulation (i.e. agreement) regarding tax indemnification. Such an indemnification agreement states that one spouse will be liable for any amounts due on previously filed joint returns and protects the spouse who didn’t prepare the return. While an indemnification agreement is helpful to the spouse not preparing the taxes, if that spouse has concerns about the other spouse’s ability to accurately prepare the tax returns s/he would be better off filing separately.

As for any available dependency exemptions, the Internal Revenue Service (“IRS”) presumes that the parent with primary custody of the child(ren) will claim the exemption for the dependent child(ren) on his/her tax return. However, most couples share the exemption by each claiming a child or children when there are more than one or alternating the years if there is only one child eligible. Before deciding if it makes sense to share the exemption equally, first it must be determined that the exemption is beneficial to both parties. For instance, a high earner may “phase out” from the benefit of the exemption while a low earner may derive no benefit from the availability of the exemption. Regardless of which parent has the dependency exemption, a parent that incurs medical expenses on behalf of the minor child is permitted to seek a deduction on their tax return for these expenses.

Although it is still a widely used term, Executor/Executrix is the former name of the position that is now called Personal Representative in Massachusetts. When creating a Last Will a Testament, the Testator/Testatrix, or person creating the Will, must choose one or two trusted people to make sure that their wishes will be carried out. This trusted person is the Personal Representative. If you have been named as the Executor/Executrix in a Will and the Testator/Testatrix passes away, you are now the Personal Representative in charge of the Decedent’s estate; what do you do now?

First you need to determine if there are any probate assets, and if so, the value of those assets. Probate assets are any assets held in the Decedent’s name alone. This does not include any jointly held assets or assets that have contractual beneficiary designations such as a life insurance policy. If there are assets held in the Decedent’s name only, then you will have to file with the Probate Court of the county in which the Decedent resided. What needs to be filed depends on the value of the assets in the Decedent’s name. If the value of the Decedent’s assets is less than $25,000.00 plus one vehicle, then you can file an expedited Probate called Voluntary Administration. If there is more than $25,000.00 plus one car in probate assets, then you must file an Informal or Formal Petition for Probate. The difference between the two forms of filing is the amount of court oversight along the way. The more complicated the situation you find yourself in, or if there is real estate to be sold, you may want to file a Formal Petition.

As Personal Representative, you are responsible for paying the debts of the Decedent when claims are properly filed with the Probate Court. You are also responsible for filing the Decedent’s last Federal and State Income Tax Return, as well as any required Estate Tax Returns.

After one (1) year from the date of death of the Decedent, you can begin to think about closing the estate. This is done by ensuring that all assets that were to be liquidated have been cashed out, all proper claims of debt have been paid, and all items of the Decedent have been distributed to the appropriate people. If these tasks are completed, you can file a first and final account with the Probate Court detailing all the assets that came into the estate, all the debts that were paid out, and how much is being distributed to those taking under the Decedent’s Will. If these tasks are incomplete, you may want to consider filing a yearly account from year to year until the estate can be closed. Your liability to the estate as Personal Representative does not conclude until the Probate Court enters a decree approving your final account.